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EXHIBIT 10.11
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Employment
Agreement") is made and entered into as of the 1st day of April, 1997, by and
among Danka Business Systems PLC, a public limited company incorporated and
registered under the laws of England and Wales ("Danka Business Systems"), Danka
Holding Company, a Delaware corporation ("Danka") (Danka Business Systems and
Danka hereinafter collectively referred to as the "Company"), and Xxxxxx X.
Xxxxx, an individual ("Executive").
WITNESSETH:
WHEREAS, Executive is a party to an Employment Agreement dated as of
April 1, 1994 by and among Danka Business Systems PLC, the Executive and Danka
Industries, Inc., a Florida corporation, which Employment Agreement provided for
an initial three-year term ending March 31, 1997;
WHEREAS, the Company wishes to assure itself of the services of
Executive for an additional five year term, on the terms and conditions set
forth herein; and
WHEREAS, Executive desires to be so employed by the Company on said
terms.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants and agreements herein contained, the parties agree as follows:
Section 1. EMPLOYMENT. The Company hereby employs Executive, and
Executive hereby accepts employment with the Company, all upon the terms and
subject to the conditions set forth in this Employment Agreement.
Section 2. CAPACITY AND DUTIES. Executive is and shall be employed in
the capacity of Chief Executive/Chief Executive Officer and President of the
Company and shall have such other duties, responsibilities and authorities as
are assigned to him by the Board of Directors of Danka Business Systems (the
"Board") as long as such additional duties, responsibilities and authorities are
consistent with Executive's position and level of authority as the Chief
Executive Officer of the Company. Executive shall report directly to the Board
with directors fees in the amount of (pound)7,500 per annum to be paid for his
services as a director of Danka Business Systems. Executive may serve as a
director of any direct or indirect subsidiary of Danka Business Systems, without
additional consideration unless agreed otherwise by the Board, but Executive's
failure or refusal to serve on the Board of one or more subsidiaries shall not
constitute a breach of this Agreement.
Section 3. TERM OF EMPLOYMENT. The term of employment of Executive by
the Company pursuant to this Employment Agreement shall be for the period (the
"Employment Period") commencing on April 1, 1997 (the "Commencement Date"), and
ending on March 31, 2002 or such earlier date that Executive's employment is
terminated in accordance with the provisions of this Employment Agreement.
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Section 4. PLACE OF EMPLOYMENT. Executive's principal place of work
shall be located in the Tampa Bay, Florida metropolitan area. The parties
acknowledge that this is consistent with the extensive national and
international business travel which may be required of Executive in connection
with his performance of his duties under this Agreement.
Section 5. BASE SALARY AND BONUS. During the Employment Period and
subject to all the terms and conditions of this Employment Agreement, the
Company shall pay Executive a base salary at an annual rate of not less than
$800,000 per annum, payable in a manner consistent with the Company's payroll
procedures for U.S. salaried employees. The Human Resources Committee of the
Board (the "H.R. Committee") shall review Executive's annual base salary on or
before the beginning of each fiscal year of the Company beginning subsequent to
March 31, 1999 in which this Agreement is in effect and may increase Executive's
annual base salary from time to time as the H.R. Committee deems to be
appropriate.
In addition to the annual base salary, for each fiscal year of the
Company during the Employment Period beginning subsequent to March 31, 1998,
Executive shall be entitled to receive an annual bonus under a performance bonus
plan developed by the H.R. Committee. The H.R. Committee shall establish during
the first quarter of each fiscal year financial performance targets for such
fiscal year, stated in terms of net income, diluted earnings per share,
operating cash flow or such other measures as may be selected by the H.R.
Committee, as well as the annual bonuses available upon achievement of target,
threshold and maximum levels of performance. The bonus available upon
achievement of the target level shall be one hundred percent (100%) of
Executive's annual base salary, and the bonus available for meeting or exceeding
maximum level of performance shall be one hundred fifty percent (150%) of
Executive's annual base salary. Subject to H.R. Committee's certification of the
Company's achievement of the relevant financial goals for the fiscal year at not
less than the threshold level, payment of each such annual bonus shall be made
to Executive in cash (net of applicable taxes) as promptly after the end of the
relevant fiscal year as the H.R. Committee is able to certify the achievement of
the applicable target performance goals, subject to any deferral election made
by Executive under the terms of the Company's deferred compensation plan for
U.S. executives. These annual bonuses are intended to qualify as
"performance-based" awards under Section 162(m) of the Internal Revenue Code,
and shall therefore be subject to approval of the general terms of the
performance bonus plan by the Company's shareholders.
All salary and bonus payments to Executive under this Agreement shall
be paid to Executive by Danka, or for periods after March 31, 1998, Danka Office
Imaging Company, through its U.S. payroll system [with the exception of the
directors fees for Executive's services as a director of Danka Business Systems,
which shall be paid by Danka Business Systems]. If Danka or Danka Office Imaging
Company should fail to make any such payment to Executive when due, Danka, Danka
Office Imaging Company and Danka Business Systems shall be jointly and severally
liable to Executive.
Section 6. ADDITIONAL COMPENSATION AND BENEFITS. During the Employment
Period, the Company shall pay to or provide Executive such other compensation
and benefits as are established by or approved by the H.R. Committee, including
the following additional compensation and welfare and fringe benefits:
(a) Stock Options. Executive shall receive annual stock option
awards, as described in Section 7 below.
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(b) Medical Insurance. The Company shall provide Executive and his
dependents with health insurance coverage no less favorable
than that from time to time made available to other key
employees of the Company located in the United States.
(c) Vacation. Executive shall be entitled to at least six weeks of
vacation during each year during the term of this Agreement,
prorated for partial years.
(d) Business Expenses. The Company shall reimburse Executive for
all reasonable, ordinary and necessary expenses he incurs in
connection with his employment by the Company (including but
not limited to, automobile and other business travel, and
customer entertainment expenses). As long as the Company
continues to operate a corporate jet for its business, the
Company will also provide the use of such jet for personal use
of Executive for which the Company will be repaid on a
first-class ticket basis for non-business passenger use.
In addition to the benefits provided pursuant to the preceding
paragraphs of this Section 6, the Executive shall be eligible to participate in
all executive compensation and retirement plans of the Company applicable
generally to officers of the Company located in the United States, and in such
welfare benefit plans, programs, practices and policies of the Company as are
generally applicable to other United States employees from time to time.
Section 7. STOCK OPTIONS. Danka Business Systems shall award Executive
stock options with respect to not less than 150,000 American Depositary Shares
representing ordinary shares of Danka Business Systems ("ADSs") in May, 1998.
This award shall be made on a date at least two (2) trading days and not more
than ten (10) trading days after the Company has publicly announced its results
for the fiscal year ended March 31, 1998. Danka Business Systems shall also
award Executive stock options with respect to an additional 350,000 ADSs in
July, 1998, subject to approval by the shareholders at the 1998 Annual General
Meeting of an amendment to the Danka Business Systems, PLC, 1996 Share Option
Plan to increase the limit on stock option awards to any individual.
During the remainder of the Employment Period, during each March
subsequent to 1998 (that is, during March 1999, March 2000, March 2001, and
March 2002), Executive shall be granted additional stock options with respect to
an additional 125,000 ADSs, subject to the availability of sufficient ADSs and
ordinary shares for such awards under stock option plans of the Company approved
by the Company's shareholders, provided that Executive has continued his
employment with the Company through the relevant grant date and has not given a
Notice of Termination as defined in Section 11 below.
All of the foregoing stock options shall be subject to the following
terms and conditions, in addition to any terms imposed by Danka Business
Systems' 1996 Share Option Plan:
(a) Each award of options shall have a maximum ten (10) year term,
and shall not be incentive stock options within the meaning of
Internal Revenue Code Section 422;
(b) Each award of options shall be awarded at market price, so
that the option price payable by Executive upon exercise shall
be equal to the market value of an ADS on the date the award
was granted;
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(c) These options granted pursuant to this Section 7 prior to
March, 2001 shall each vest on the fifth anniversary of the
date of grant, provided Executive's employment has continued
through such date (or has been terminated upon terms
acceptable to the H.R. Committee). Notwithstanding the
preceding sentence, one-third (1/3rd) of the shares covered by
each such option award granted before March 2001, shall vest
on an accelerated basis if for any fiscal year of the Company
which includes one of the first three anniversaries of the
relevant date of grant the Company has achieved, on a
cumulative basis, the performance-related financial target for
that period approved by the H. R. Committee, as set forth in
writing in the form of Stock Option Certificate approved by
the H.R. Committee. The option awards granted in March 2001
and March 2002 shall each vest in three (3) annual
installments, consisting of one-third of the ADSs, on the
first three anniversaries of the relevant date of grant,
provided Executive's employment continues through such date
(or been terminated on terms acceptable to the H.R.
Committee), but such vesting shall not be conditioned on
satisfaction of financial performance targets.
(d) The Options granted to Executive under this Section shall
become fully vested on an accelerated basis upon: (1) in the
case of the Options granted in May and July 1998, upon
expiration of the Employment Period if the applicable
performance criteria have not previously been met; (2) in the
case of the Options granted in March 1999 and March 2000, the
third anniversary of the relevant date of grant, if Executive
has previously retired at the expiration of the Employment
Period and any applicable performance criteria have not been
met; (3) Executive's death or permanent disability; (4) an
involuntary termination of Executive's employment other than
for Cause [as defined in Section 11]; (5) Executive's
voluntary termination of employment for Good Reason [as
defined in Section 11 below]; (6) the date the Company gives
Executive a Notice to Terminate [other than for Cause as
defined in Section 11]; or (7) a Change of Control [as defined
in Section 11 below].
(e) Upon termination of Executive's employment for Cause [as
defined in Section 11], any unexercised Options held by
Executive shall be forfeited immediately. Upon delivery of a
Notice of Termination by Executive or other voluntary
termination by Executive [other than for Good Reason as
defined in Section 11.02], any vested but unexercised options
held by Executive shall continue to be exercisable during the
period of twelve (12) months following the date of
termination. If Executive's options vest on an accelerated
basis pursuant to paragraph (d), or if Executive's employment
terminates at the expiration of the Employment Period, the
options not exercised by the termination date shall continue
to be exercisable for a period of thirty-six (36) months
following such date (but not later than the expiration of the
option's original ten (10) year term). Such continued right to
exercise the options shall be subject to Executive's adherence
to the terms of such non-competition, confidentiality and
similar restrictive covenants as the H.R. Committee may
require to be included in the stock option certificates,
provided that such restrictive covenants shall be deemed to be
waived upon a Change of Control [as defined in Section 11
below].
(f) At the Committee's discretions, the options may be granted for
the equivalent number of ordinary shares of Danka Business
Systems, instead of ADSs.
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Section 8. SUPPLEMENTAL CASH PAYMENT. To recognize that the delay in
the grant of stock options with respect to 350,000 ADSs until after the 1998
Annual General Meeting of Shareholders may have an adverse effect on the value
of the grant, the Company agrees to make the supplemental cash payments
described in this Section 8 to Executive if (i) the amendment to the 1996 Share
Option Plan is approved and (ii) the market prices for ADSs for a period of five
(5) consecutive trading days which includes the award date for Executive's July
1998 stock option award, exceed the market prices for ADSs for an equivalent
period of five (5) consecutive trading days which includes the date of the
Executive's May 1998 stock option award. The period of five (5) trading days in
May shall begin on the third trading day after the Company has publicly
announced its financial results.
The aggregate amount of the supplemental cash payments (if any) to be
made to Executive shall be equal to the amount determined in the following
manner:
(a) The number obtained by subtracting (i) the average of the
closing prices quoted for the ADSs in the Wall Street Journal for each
trading day (for the U.S. stock markets) included in the period of five
(5) trading days which includes the award date for Executive's May 1998
stock option award, from (ii) the average of the closing prices quoted
for the ADSs for each trading day in the week which includes the award
date for Executive's July, 1998 stock option award, but (iii) in no
event more than $5.00 per ADS;
(b) multiplied by 350,000 ADSs.
This amount, or a portion thereof, shall be paid to Executive, without interest,
at such time as the July 1998 stock option award (or any installment of such
option award), vests, including payment of a proportionate part of such amount
whenever an installment of the stock option has vested on an accelerated basis
as a result of the Company's financial performance, provided Executive's
employment with the Company has continued through such date, subject to any
deferral election the Executive may file pursuant to the Company's Deferred
Compensation Plan with respect to such payments.
If any part of the stock option award to be granted to Executive in
July 1998 is forfeited by Executive before Executive has received all
installments of these supplemental cash payments, Executive shall forfeit a
portion of the unpaid supplemental cash payments proportionate to the percentage
of the ADSs covered by the July 1998 stock option award Executive forfeits.
Section 9. TERMINATION BY THE COMPANY OR BY EXECUTIVE. This Employment
Agreement may be terminated by the Board of Danka Business Systems or by
Executive upon one (1) year's written notice, provided that Danka Business
Systems or Executive, as the case may be, shall give Notice of Termination (as
hereinafter defined). Compensation paid to Executive during the one-year notice
period following the giving of the Notice of Termination shall be considered to
be part of the severance pay described in Section 10 of this Employment
Agreement.
This Employment Agreement may be terminated upon six months' written
notice by Danka Business Systems by reason of the Disability (as hereinafter
defined) of Executive. This Employment Agreement may be terminated by the Board
of Danka Business Systems immediately upon giving Notice of Termination for
Cause (as hereinafter defined) and may be terminated by Executive for Good
Reason (as hereinafter defined) immediately upon giving Notice of Termination,
provided that the Company shall in either case pay to Executive the compensation
and other benefits described in
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Section 10 of this Employment Agreement. Executive's right to terminate his
employment for Good Reason shall not be affected by his incapacity due to
physical or mental illness.
Section 10. PAYMENTS UPON TERMINATION.
(a) If Executive's employment is terminated during the term of this
Agreement, either by the Board or by Executive, Executive shall be entitled to
receive his base salary accrued through the date of termination, any accrued but
unpaid vacation pay for the year of the termination, plus any bonus earned but
not previously paid with respect to fiscal years preceding the termination date.
If Executive's employment is terminated during the term of this Agreement by
reason of Executive's death or disability, by Executive for Good Reason (as
defined in Section 11 below), or by the Company other than for Cause [as defined
in Section 11], then Executive shall also receive the additional termination pay
and benefits set forth in Sections 10(b), 10(c), 12 or other applicable
provisions of this Employment Agreement.
(b) If Executive's employment is involuntarily terminated by the
Company other than for Cause (as defined in Section 11), including by giving a
Notice of Termination to Executive, or if the Executive gives a Notice of
Termination for Good Reason (as defined in Section 11), the Company shall also
be obligated to provide Executive with the following severance compensation:
(i) The Company shall pay to Executive (subject to withholding of
applicable taxes) a series of monthly termination payments, each equal
to one-twenty-fourth (1/24th) of the sum of (A) two (2) full years of
Executive's annual base salary, at the rate in effect on the date the
Notice of Termination is given, and (B) twice the target annual bonus
(i.e., twice 100 percent of annual base salary) which would be payable
to Executive for the fiscal year in which the Notice of Termination is
given if the Company's financial performance targets were deemed to be
satisfied at the budgeted target level for such fiscal year. These
monthly termination payments shall continue for twenty-four (24)
months, but no termination payments shall be made for periods after the
March 31, 2002, expiration of the Employment Period. These payments
shall be offset by any amounts the Company pays to the Executive as
annual salary or bonus for his services during the one-year notice
period following the date the Notice of Termination was given, but
shall not be offset by any amounts Executive may receive as
compensation for services he performs for any other employer after his
employment with the Company terminates.
(ii) In addition to these termination payments, Executive shall be
entitled to receive a pro rata annual bonus from the Company for the
fiscal year which includes the date of termination, calculated by
determining the performance bonus earned for the fiscal year which
includes the date of termination, based on the extent to which the
Company actually satisfies the relevant financial performance targets
for the fiscal year by the end of such fiscal year, and multiplying
this amount by a percentage equal to the ratio of the number of days
worked by Executive during the fiscal year of the termination to the
total number of work days during such fiscal year. This pro rata bonus
shall be paid to Executive (subject to withholding at applicable taxes)
promptly after the end of the fiscal year, once the H.R. Committee has
certified the Company's achievement of the relevant performance
targets.
(iii) The Company shall continue to provide the Executive and his wife
with coverage under all medical, hospitalization, life and other
insurance benefits being provided to Executive at the date the Notice
of Termination is given, for a period of up to twenty-four (24) months
after the
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date of termination; provided that the Company shall have no obligation
to continue to provide Executive with these benefits for any periods
after the earlier of (A) the expiration of the Employment Period, or
(B) the date Executive obtains comparable benefits (with no significant
pre-existing condition exclusions) as a result of Executive's
employment in a new position.
(iv) Any stock options awarded to Executive under any stock option plan
or scheme maintained by the Company shall (A) if not previously vested,
immediately become fully vested and exercisable in full, and (B) be
deemed to be amended to permit their exercise by Executive at any time
during the period of thirty-six (36) months following the date of
termination (but no later than the expiration of any such stock
option's original ten-year term), subject to the Executive's adherence
to the terms of such non-competition, confidentiality and similar
restrictive covenants as the H.R. Committee may require to be included
in the relevant stock option agreements.
(v) The Executive shall also receive any vested benefits payable to
him under the terms of any deferred compensation, retirement, incentive
or other benefit plan maintained by the Company, payable in accordance
with the terms of the applicable plan.
(c) If, at any time during the period of twenty-four (24) months
following a Change of Control [as defined in Section 11.04], Executive's
employment is involuntarily terminated by the Company or the Executive
terminates his employment for Good Reason [as defined in Section 11.02 below],
then Executive may elect, by delivering written notice to the Company within
thirty (30) days following the date of such termination, to demand that the
Company pay him an undiscounted lump sum payment equal to the sum of (i) two (2)
full year's annual base salary, at the rate in effect on the date the Notice of
Termination is given, plus (ii) twice the target annual bonus which would have
been payable to Executive for the fiscal year if the Company's financial
performance goals were deemed to be satisfied at the target level for such
fiscal year (or, if the executive performance bonus plan is terminated after the
Change of Control or modified to lower the available bonuses, then the annual
performance bonus target for the last fiscal year prior to the Change of
Control). This lump sum payment shall be in lieu of the monthly severance
payments required by Section 10(a)(i) of this Employment Agreement. The Company
shall deliver the lump sum payment (subject to withholding of applicable taxes)
to Executive by wire transfer or cashier's check within ten (10) business days
after the date on which Executive delivers his election to the Company.
(d) If Executive's employment is terminated by the Board for Cause, the
amount Executive shall be entitled to receive from the Company shall be limited
to his base salary accrued through the date of termination, any accrued but
unpaid vacation pay for the year of termination, any bonuses earned but not
previously paid with respect to the fiscal year of Danka Business Systems most
recently ended, and any vested benefits payable to Executive under the terms of
any deferred compensation, retirement, stock option or other incentive plans
maintained by the Company.
(e) If Executive voluntarily terminates his employment by giving Notice
of Termination before the end of the Employment Period (other than for Good
Reason as defined in Section 11.02), or retires at the end of the Employment
Period, the amount Executive shall be entitled to receive from the Company shall
be limited to his base salary accrued through the date of termination, any
accrued but unpaid vacation pay for the year, any bonus earned but not
previously paid with respect to the fiscal year of Danka Business Systems most
recently ended, and any other vested benefits payable to the Executive under the
terms of any deferred compensation, retirement, stock option or other incentive
plans of the Company.
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(f) All payments to Executive under this Section 10 shall be paid by
Danka, or for periods after March 31, 1998, Danka Office Imaging Company, but in
the event Danka should fail to make any such payment when due, Danka, Danka
Office Imaging Company, and Danka Business Systems shall be jointly and
severally liable to Executive.
Section 11. DEFINITIONS. In addition to the words and terms elsewhere
defined in this Employment Agreement, certain capitalized words and terms used
in this Employment Agreement shall have the meanings given to them by the
definitions and descriptions in this Section 11 unless the context or use
indicates another or different meaning or intent, and such definition shall be
equally applicable to both the singular and plural forms of any of the
capitalized words and terms herein defined. The following words and terms are
defined terms under this Employment Agreement:
11.01 Disability. "Disability" shall mean a physical or mental
illness which, in the judgment of the Company after consultation with
the licensed physician attending Executive, impairs Executive's ability
to substantially perform his duties under this Employment Agreement as
an employee and as a result of which he shall have been unable to
perform his duties for the Company on a full-time basis for six (6)
consecutive months.
11.02 Good Reason. "Good Reason" shall mean the occurrence of
any of the following events without Executive's prior express written
consent: (i) any material change in Executive's status, title,
authorities or responsibilities (including reporting responsibilities)
under this Employment Agreement which represents a demotion from such
status, title, position or responsibilities (including reporting
responsibilities); the assignment to him of any duties or work
responsibilities which are materially inconsistent with his status,
title, position or work responsibilities set forth in this Employment
Agreement or which are materially inconsistent with the status, title,
position or work responsibilities of a chief executive officer of a
United Kingdom/United States publicly traded corporation; or any
removal of Executive from, or failure to appoint, elect, reappoint or
reelect Executive to, any of such positions, including a failure to
reelect Executive as an Executive Director, except as a result of his
death or Disability; (ii) the relocation of the principal office of the
Company or the reassignment of Executive to a location more than thirty
(30) miles from St. Petersburg, Florida; (iii) the failure by the
Company to continue in effect any incentive, bonus or other
compensation plan in which Executive participates, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has
been made with respect to the failure to continue such plan, or the
failure by the Company to continue Executive's participation therein,
or any action by the Company which would directly or indirectly
materially reduce his participation therein or reward opportunities
thereunder; provided, however, that Executive continues to meet
substantially all eligibility requirements thereof; (iv) the failure by
the Company to continue in effect any employee benefit plan (including
any medical, hospitalization, life insurance, disability or other group
benefit plan in which Executive participates), or any material fringe
benefit or perquisite enjoyed by him unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has been made
with respect to the failure to continue such plan, or the failure by
the Company to continue Executive's participation therein, or any
action by the Company which would directly or indirectly materially
reduce his participation therein or reward opportunities thereunder, or
the failure by the
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Company to provide him with the benefits to which he is entitled under
this Employment Agreement; provided, however, that Executive continues
to meet substantially all eligibility requirements thereof; (v) any
other material breach by the Company of any provision of this
Employment Agreement; or (vi) any purported termination of Executive's
employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of this Employment Agreement, and for
purposes of this Employment Agreement, no such purported termination
shall be effective; or (vii) the failure of the Company to obtain a
satisfactory agreement from any successor or assignee of the Company to
assume and agree to perform this Employment Agreement.
11.03 Cause. For purposes of this Agreement, "Cause" shall
mean and be limited to (i) Executive being convicted of a felony (or
entering a guilty or nolo contendere plea to such a crime); or (ii)
Executive being convicted of any lesser crime committed in connection
with the performance of his duties hereunder involving fraud or moral
turpitude; or (iii) the intentional and willful failure by Executive to
substantially perform his duties hereunder as directed by the Board
(other than any such failure resulting from Executive's incapacity due
to physical or mental disability) after a demand for substantial
performance is made on Executive by the Board.
11.04 Change of Control. "Change of Control" shall be deemed
to have occurred when: (i) securities of Danka Business Systems
representing 30 percent or more of the combined voting power of the
then outstanding voting securities of Danka Business Systems are
acquired pursuant to a general offer for the issued share capital of
the Company which is an offer regulated under the U.K. Take-Over Code
or any other tender offer or an exchange offer by any person or group
of persons acting in concert [within the meaning of Section 14(d) of
the Securities Exchange Act of 1934] other than the Company, a direct
or indirect subsidiary or parent of the Company, an employee benefit
plan or similar trust established by the Company, or any other person
whose offer has been solicited or expressly approved by the Board; (ii)
a merger or consolidation is consummated in which Danka Business
Systems is a constituent corporation and which results in less than 50
percent of the outstanding voting securities of the surviving or
resulting entity being owned by the then existing stockholders of Danka
Business Systems; (iii) a sale is consummated by the Company of
substantially all of the Company's assets (or substantially all of the
assets of Danka) to a person or entity which is not a wholly-owned
subsidiary of Danka Business Systems or any of its affiliates; or (iv)
during any period of two consecutive years, individuals who, at the
beginning of such period, constituted the Board cease, for any reason,
to constitute at least a majority thereof, unless the election or
nomination for election for each new director was approved by the vote
of at least two-thirds of the directors then still in office who were
directors at the beginning of such two-year period.
11.05 Notice of Termination. "Notice of Termination" shall
mean a written notice which shall indicate the specific termination
provision in this Employment Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so
indicated; provided, however, no such purported termination shall be
effective without such Notice of Termination; provided further,
however, any
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purported termination by the Company or by Executive shall be
communicated by a Notice of Termination to the other party hereto in
accordance with Section 13 of this Employment Agreement.
Section 12. DEATH. Upon Executive's death during the Employment Period,
this Employment Agreement shall terminate immediately upon the date of
Executive's death, provided that the Company shall:
(a) pay to Executive's estate Executive's base salary accrued
through the date of death, accrued but unpaid vacation pay for
the year of death, any bonus earned but unpaid with respect to
periods prior to the date of death, and a pro rata bonus for
the fiscal year which includes the date of death, calculated
by multiplying the performance bonus payable for the fiscal
year, based on the Company's actual satisfaction of its
performance goals for the year, by a percentage equal to the
ratio of the number of days Executive worked prior to his
death to the total number of work days during the fiscal year.
(b) pay any death benefits owed in respect of Executive under the
terms of any life insurance plan, retirement or deferred
compensation plan, or other benefit plan of the Company, to
Executive's surviving spouse or such other beneficiary as
Executive has designated.
Section 13. NOTICES. For the purposes of this Employment Agreement,
notices and all other communications provided for in the Employment Agreement
shall be in writing and shall be deemed to have been duly given when personally
delivered or sent by certified mail, return receipt requested, postage prepaid,
or by expedited (overnight) courier with established national reputation,
shipping prepaid or billed to sender, in either case addressed to the respective
addresses last given by each party to the other (provided that all notices to
the Company shall be directed to the attention of the Board with a copy to the
Secretary of the Company) or to such other address as either party may have
furnished to the other in writing in accordance herewith. All notices and
communication shall be deemed to have been received on the date of delivery
thereof, on the third business day after the mailing thereof, or on the second
day after deposit thereof with an expedited courier service, except that notice
of change of address shall be effective only upon receipt.
Section 14. SUCCESSORS. This Employment Agreement shall be binding on
the Company and any successor to any of its businesses or to a substantial
fraction of its business assets. Without limiting the effect of the prior
sentence, the Company shall use its best efforts to require any successor or
assigns (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Employment Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken place. As used in this
Employment Agreement, "Company" shall mean the Company as hereinbefore defined
and any successor or assignee to its business and/or a substantial fraction of
its assets as aforesaid which assumes and agrees to perform this Employment
Agreement or which is otherwise obligated under this Agreement, by operation of
law or otherwise.
Section 15. BINDING EFFECT. This Employment Agreement shall inure to
the benefit of and be enforceable by Executive's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amounts would still be
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payable to him hereunder if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Employment Agreement to Executive's estate.
Section 16. MODIFICATION AND WAIVER. No provision of this Employment
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing and signed by Executive and such officer of
the Company as may be specifically designated by the Board. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Employment Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
Section 17. HEADINGS. Headings used in this Agreement are for
convenience only and shall not be used to interpret or construe its provisions.
Section 18. WAIVER OF BREACH. The waiver of either the Company or
Executive of a breach of any provision of this Employment Agreement shall not
operate or be construed as a waiver of any subsequent breach by either the
Company or Executive.
Section 19. AMENDMENTS. No amendments or variations of the terms and
conditions of this Employment Agreement shall be valid unless the same is in
writing and signed by all of the parties hereto.
Section 20. SEVERABILITY. The invalidity or unenforceability of any
provision of this Employment Agreement, whether in whole or in part, shall not
in any way affect the validity and/or enforceability of any other provision
herein contained. Any invalid or unenforceable provision shall be deemed
severable to the extent of any such invalidity or unenforceability.
Section 21. ENTIRE AGREEMENT. This Employment Agreement sets forth the
entire agreement and understanding of the Company and Executive in respect of
the terms and conditions of Executive's employment after the Commencement Date,
and supersedes all prior employment agreements, covenants or representations or
warranties, whether oral or written, made by the parties, or any representative
of the Company, with respect to such terms and conditions of employment,
including the Employment Agreement dated April 1, 1994 by and among Executive,
Danka Business Systems and Danka Industries, Inc.
Section 22. GOVERNING LAW. This Employment Agreement shall be construed
and enforced pursuant to the laws of the State of Florida.
Section 23. ARBITRATION. Any controversy or claim arising out of or
relating to this Employment Agreement or any transactions provided for herein,
or the breach thereof, other than a claim for injunctive relief shall be settled
by arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association (the "Rules") in effect at the time demand for
arbitration is made by any party. One arbitrator shall be named by the Company,
a second shall be named by Executive and the third arbitrator shall be named by
the two arbitrators so chosen. In the event that the third arbitrator is not
agreed upon, he or she shall be named by the American Arbitration Association.
Arbitration shall occur in St. Petersburg, Florida or such other location as may
be mutually agreed to by the Company and Executive. The award made by all or a
majority of the panel of arbitrators shall be final and binding, and judgment
may be entered in any court of law having competent jurisdiction. The
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award is subject to confirmation, modification, correction, or vacation only as
explicitly provided in Title 9 of the United States Code, as amended. The
prevailing party shall be entitled to an award of pre- and post-award interest
as well as reasonable attorneys' fees, costs and expenses incurred in connection
with the arbitration and any judicial proceedings related thereto.
Section 24. COUNTERPARTS. This Employment Agreement may be executed in
more than one (1) counterpart and each counterpart shall be considered an
original.
IN WITNESS WHEREOF, this Employment Agreement has been duly executed by
the Company and Executive as of the date first above written.
"COMPANY" - DANKA BUSINESS SYSTEMS PLC
By /s/ Xxxx X. Xxxxxxx-Xxx
--------------------------------------
Xxxx X. Xxxxxxx-Xxx, Chairman
DANKA HOLDING COMPANY
By /s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx, Vice President
"EXECUTIVE"
/s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx
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